Do you find that suggestion credible?

Mr. FRI. It is entirely posible. As you know, Mr. Chairman, we have undertaken a very substantial program over the last year to reduce mercury discharges from industrial waste, and it seems to me that the industrial discharges themselves are of that order of magnitude, without saying whether it is 400 or 600.

In addition, we have in being, as I indicated, a task force which is attempting to determine what all of the sources of mercury are, how they are getting into the environment, and to consider that problem as a whole, and it may very well be that substantial discharges are moving through municipal sewage systems.

Senator SPONG. You have mentioned that some testing and monitoring is taking place.

Is EPA doing any monitoring of municipal sewage plants to determine in fact how great this danger is?

Mr. FRI. Of course, we do a great deal of monitoring of effluents from a variety of sources. Dr. Buckley, who is from our Research and Monitoring Office, might be able to be more specific about that. Senator SPONG. Dr. Buckley, before you respond to that, would you care to comment on Dr. Klein's statement about the 600 pounds per day of mercury?

Dr. BUCKLEY. Mr. Chairman, I wasn't here yesterday, but I did have the privilege of reading the statement last evening, The arithmetic looks reasonable. I have no data that suggests that it is grossly off in the estimates here.

To my knowledge, we are not monitoring systematically the effluents from the municipal systems. As you recognize, there are a very large number of such systems, and according to Dr. Klein's numbers it would be very low amounts in terms of concentration effluent.

I am not certain whether the methodologies available would be adequate to routinely measure it. So, my answer is, as far as we know, we are not routinely measuring mercury discharges from municipal

sources.

Senator SPONG. I will put this question to both of you gentlemen. I have asked you about the municipal treatment plants. Are any steps now being taken to restrict mercury-containing products over which you have jurisdiction?

Yesterday, Dr. Klein touched on a number of these in his testimony. Mr. FRI. We have relatively little jurisdiction over consumer products as such in EPA. We are, as I say, attempting to determine what all of the sources of mercury in the environment are, so as to develop a strategy which would get at the problem in such a way as to solve it. I think the authorities contained under this proposal, the Toxic Substances Control Act, will go a long way to give us the tools necessary to get at some of those problems.

John, would you comment on where the task force is at this point? Dr. BUCKLEY. There is a fairly extensive series of uses of mercury that we have thought about. Certainly we have taken action on mercury-containing pesticides. There are a number of uses of mercury which are not subject to our control under existing authorities, and among those that were mentioned yesterday are mercury batteries, for example.

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I would like to point out that if this Toxic Substances Act were in existence, it doesn't necessarily imply that one would prohibit the use of mercury in batteries, but one certainly might look for ways in which one could recycle this or prevent it from eventually reaching the environment.

The other point I should have made earlier with regard to municipal waste is that the normal sewage treatment process does not in fact take any substantial amount of mercury from the effluents. It is designed through a bacterial system to remove organic materials, to break these down, but mercury is not subject to being broken down, and, therefore, it is not removed in any substantial amount in the treatment process.

Senator SPONG. EPA does have jurisdiction over paint, pesticides, glue, floor waxes, lumber and textiles; is that correct?

Dr. BUCKLEY. It has jurisdiction over these when the mercury is used as a fungicide, or algicide, or some kind of -cide.

On the other hand, mercury is also used in paint, as I understand it, as a preservative which is to extend the shelf life of some of these paints. I believe our authority does not extend to that particular kind of usage.

Mr. FRI. It extends, of course, to the extent mercury is used in the production process and may be discharged either into water or into the air. We have authority to control those sorts of discharges.

Senator SPONG. In your statement you cite some categories of substances for which controls under this legislation are needed to fill gaps in the air and water pollution control laws.

Would you cite some specific examples of substances which would fall into these categories?

Mr. FRI. I can cite some kinds of things that one might want to look at under this act. Perhaps Dr. Buckley can cite some others. The kind of problems which we wish to come to grip with, for example, is the question of, let's say, asbestos in building construction. There are controls that relate to the application of asbestos through occupational health and safety standards, and if the asbestos installation is properly applied, it shouldn't be any problem during the life of the building. However, when you knock the building down, you get some asbestos into the air.

Our query then is to what extent is that a hazard, and assuming that it is a significant hazard, how does one control it? Does one control the methods of disposal in how you knock the building down, or does one say maybe this ought to go in in the first place?

We presently really have no authorities if we were to determine, and of course we have not, that asbestos should not be used in buildings because its ultimate disposal would create a significant hazard to health or to the environment. A similar kind of situation might be involved in fertilizer runoff. If there are no pesticidal claims made for a fertilizer, we don't have any direct control over it. But a fertilizer may run off into the water. There was an instance, as I recall, in the Potomac Basin in the winter of 1970-71 which resulted in some contamination of water supply in Montgomery County, which was pretty much innocuous from the public health standpoint, but it smelled pretty bad and it affected the taste.

There are certain options in controlling fertilizer runoffs of this character. One would be through the water legislation to control the

way it is applied to control the runoff itself. It may prove, however, in certain basins that that is a very difficult thing to do and certain ingredients of fertilizer, that have adverse impacts on the health or environment, could best be controlled only by preventing the use of that substance for that purpose at the outset.

Those are two kinds of examples I think which are representative of control problems that we can face up to. We now really neither have the mechanism to collect information nor to test for health effects nor the full range of options available to us that we need to control the introduction of these kinds of materials into the environment.

Senator SPONG. Do you see the legislation before us as another enforcement tool on top of the existing air and water legislation?

Mr. FRI. It is complementary to much of the legislation that we already have. If it is, for example, practical to control industrial discharges of mercury in the production process, to control the discharges of mercury from the production process into the water-and we have had a pretty good record in doing that, we have been able to achieve more than 90-percent reduction, as high as 98-percent reduction in some industries-then that is an authority that perhaps is easier to use than simply banning mercury from the production process.

So, it may be wise in that case to use the water authority or the air authority.

In the case of pesticides, there are a number of chemical substances which have uses both as a so-called economic poison which fall under the pesticide legislation, FIFRA, but also have uses as noneconomic poison to which the FIFRA does not apply, and this legislation would help to fill that gap.

It is complementary to the legislation that we have, and I think it is an important device in helping us to step back and look at the total environmental cycle of a particular substance to determine where is the best place to step into that cycle to prevent the discharge of that substance into the environment and to take appropriate action.

So, in that sense, I think it is complementary to our existing media and product authorities.

Senator SPONG. There are certain instances where it would be easier to monitor the process than to monitor the discharge?

Mr. FRI. Yes, I would think that is right. What you are saying is there are cases where it would be more effective to say, let's not use it at all, rather than to say, let's see if we can't take it out of the effluent. There may very well be cases of that type.

Senator SPONG. One difference between the administration's bill and the amendment that has been offered is that under the amendment, EPA would be empowered to initiate legal actions directly without going through the Justice Department.

Would you be opposed to conferring that authority on EPA?

Mr. FRI. Well, we have taken the stand fairly consistently along with the rest of the administration that good administrative practice is to have the Department of Justice undertake litigation on behalf of whatever agency of the government needs it. We are confident that we are not going to have a problem, in such cases of an imminent hazard, of waking up a U.S. attorney and getting him into court.

I don't think this will confer any disadvantage, and I think it confers the advantage administratively of an orderly procedure, with a

U.S. attorney acting in a court with which he is familiar, and we support the administration's position on that.

Senator SPONG. You dont' foresee any undue delays?

Mr. FRI. No, sir.

Senator SPONG. Yesterday Chairman Train testified that while the administration was amenable to a citizens suit provision, the right of action authorized by the amendment was not acceptable.

Can you comment on the nature of any objection that the EPA has? Mr. FRI. I have not analyzed the details of the citizens suit provision in this particular amendment, though I must admit it looks relatively familiar in most respects, and we have in general supported the notion of citizens suits in environmental legislation and I think would continue in principle to support that. We would be happy to work with the committee to determine if the appropriate provision could be worked out in the light of this bill.

Senator SPONG. This section is very similar to the citizen suits provisions of the air pollution legislation that was passed last year. I see here that the report of EPA dated August 3, 1971 says:

The section providing for citizens suit is a desirable addition to the bill. It is in line with the administration's position that environmental citizens suits provsions conform with the comparable provision contained in the Clean Air Act. So, I take it that EPA is not on all fours with Mr. Train insofar as the citizens suits are concerned.

Mr. FRI. There is some appearance of that.

Senator SPONG. Thank you very much.

Mr. FRI. Although in fairness to Chairman Train, I think I should say that as I understand his testimony yesterday he pointed out that there are far fewer mandatory actions under the Toxic Substances Act than we have here. There is good reason for that. In the clean air situation, we know pretty well what we want to do, and there is a very tight timetable for getting things done under that act, and those timetables must be enforced and we are working hard to enforce them, and the assistance of citizens in enforcing them is welcome.

Under this proposal, we are talking about a program which is much newer in character. We do not have the several years of experience with this program that we had before the passage of the Clean Air Act Amendments of 1970, and I think there is a significant question of how one applies a citizens suit provision here, where there are far fewer deadline milestone-type actions, in such a way as to ventilate the process to citizens action, and at the same time, avoid capricious action which would simply clog up the courts and keep Bill Ruckelshaus in court most of the time instead of running the agency.

So, I think there is a substantial question of how this provision should be applied in such a bill, and I think it requires careful thought.

Senator SPONG. In your statement, you mention the fact that controls over manufacture and distribution apply to only a small percentage of the chemicals that find their way into the environment. What specific chemicals are you referring to, and could you give us a brief description of the controls that do exist over the manufacture of these chemicals?

Mr. FRI. John, can you respond to that? I don't have a readymade

list.

Dr. BUCKLEY. I don't have a list either, Mr. Chairman, but clearly the Pesticide Act, FIFRA, does provide controls over the introduction of those materials in the environment. The same thing occurs with the Food, Drug, and Cosmetic Act as it applies not only within our jurisdiction but also elsewhere. But by and large, our controls on these are only through the effluents.

Mr. FRI. There is something like 900 chemicals that are, in effect, subject to control under FIFRA. Many of those 900 substances have other uses than in pesticides.

Senator SPONG. Are these controls similar in nature to what might be embodied in a restriction on use or distribution under either S. 1478 or the amendment?

Mr. FRI. The existing controls over manufacture and distribution? Senator SPONG. Yes.

Mr. FRI. It is my understanding, and perhaps we should provide a more detailed answer for the record, but it is my understanding that the substance of these controls is substantially over the end product, so that in the case of pesticides we register or refuse to register a particular product. If we suspend that product, we can get into the question of how it is distributed or not distributed.

Under the administration's proposed pesticide bill, we would have even more finely tuned controls over how the product is not only manufactured and distributed but applied as well.

Dr. BUCKLEY. It is true we do not have authority under the existing FIFRA for control over manufacturing.

Senator SPONG. You do not?

Dr. BUCKLEY. We do not under the existing law.

Senator SPONG. We would appreciate your adding to your response to this last question for the record in any way that you might wish. (The information follows:)

Authority in the proposed bill would be used to regulate toxic substances (not consumer hazards, except as they are exerted through the environment) that can be more efficiently or effectively controlled through regulation of use rather than through regulation of ambient environmental levels. Regulation of use has the added advantage of being preventive rather than curative.

Substances to be considered for control would include such characteristics as persistence, and toxicity-acute and chronic-to man and other important living organisms. The kinds of substances that might be regulated under the proposed bill include:

Substances that occur as ingredients or impurities in manufactured products that are likely to reach the environment during the course of use of the product or at the time of disposal of the product. Examples include "dioxin" contaminants in products other than pesticides and arsenic in detergents.

Substances that are so inherently environmentally damaging that extreme precautions are required to prevent their reaching the environment. Some examples in this category are asbestos inhalation at the time of building demolition and PCB's as heat transformer agents in transformers.

Substances that may be deliberately applied to the environment to achieve a particular purpose, but that may have unwanted side effects either where they are applied or in other parts of the environment to which they have been transported. An example in this category would be fertilizers.

Substances that are used for a variety of purposes, only some of which are covered by existing laws. Examples include mirex as a fire retardant and mercury as a paint stabilizer.

Finally, substances that are difficult to remove in effluent treatments, either because of their inherent stability or because they occur in very small quantities. The following chart depicts to the extent toxic substances are currently controlled by Federal statutes.